Volume 40Number 5

The calls to Scott Mote’s office at the Ohio Lawyers Assistance Program about older lawyers are increasing—like the one he got from a judge about a well-known and respected probate attorney.

“This guy was in in his 80s, but he was in great physical shape. He could probate in his sleep,” Mote recalls. “But he started coming in and was filing stuff that was all screwed up. He got lost driving to his office.”

Worried family members staged an intervention, joined by judges, colleagues and mental health professionals. They persuaded him to retire, and he agreed, according to Mote.

“I got a call six months later, and he was back in court. He forgot. It was like this intervention never happened,” Mote says. “We don’t want to prosecute them. We just want them to stop practicing.”

It is a narrative heard and told with increasing frequency by Mote and others on the front lines of the challenges of dealing with an aging lawyer population. A combination of factors—most notably longer lifespans, retirement finance fears, and the bulging baby boom—have led to larger numbers of lawyers practicing beyond the traditional retirement age of 65.

For many bar associations—particularly at the state level, where lawyer discipline and licensing issues are often confronted—that has meant an increasing focus on how to deal with older attorneys and fears of age-related cognitive impairment. Programs and initiatives such as succession and retirement planning, learning to spot cognitive decline, and planned interventions to gracefully guide lawyers toward retirement are gaining traction, as concerns grow about protecting older attorneys and their clients.

Increasingly, many bar leaders say, this growing effort involves a wider range of resources from inside and outside the bar, from judges and law partners to family members, medical professionals and lawyers’ assistance programs. It’s a multi-pronged effort that will likely continue to grow, they say, in response to demographic trends that show more people working well past traditional retirement years.

Why are lawyers staying in practice longer?

“When I was a kid, a 65-year-old man was an old man,” says Mote, the 66-year-old executive director of the Ohio Lawyers’ Assistance Program. “Not anymore.”

In 1960—when Mote was a kid—the average life expectancy for a 65-year-old man was another 12.8 years, according to the Centers for Disease Control and Prevention; in 2015, it was 17.8 years. And over that span, the number of Americans covered by health insurance has risen from about 50 percent to 90 percent, according to the U.S. Social Security Administration, paving the way for healthier, longer-living citizens.

While recent nationwide statistics are hard to come by, several states are reporting increases in the average age of lawyers, as well as the number of lawyers practicing beyond usual retirement ages.

California: In 2011, 43 percent of lawyers were 60 or older.

Maine: A 2013 report found that 47 percent of the bar’s 4,000 practicing lawyers were 55 or older, with the number aged 65 or older more than doubling.

Texas: The percentage of state bar members older than 65 has nearly doubled in 10 years, jumping from 8 percent in 2005 to 15 percent in 2015—with a quarter of all members 61 or older.

While improved physical health is surely a factor in the growing number of older lawyers still in practice, the most pressing reason is likely finances heading into retirement. It’s the most often-cited reason for why Americans of all professions are working past 65. In 1960, 41 percent of all private-sector workers were covered by traditional, safely invested pension plans, according to the Employee Benefits Research Institute. By 2011, that number had plunged to 11 percent, with most workers relying on 401(k) or similar plans usually tied to the increasingly volatile stock market.

“In 2008, our 401(k)s became 101(k)s,” says Mote, referring to the economic recession that decimated many retirement accounts. “For many older lawyers, there was no choice but to keep working.”

But health and finances don’t entirely explain the delayed retirement trend, particularly in the legal profession, according to Bree Buchanan, executive director of the Texas Lawyers’ Assistance Program.

“It’s their identity. It’s their livelihood. It’s their income,” she says. “What are they going to do if they’re not a lawyer?”

At the same time, dementia and Alzheimer's disease rates are on the rise. The Alzheimer’s Association estimates that by 2050, the number of Americans age 65 and older with the disease will nearly triple, from 5.2 million to 13.8 million. The World Health Organization refers to dementia as an “epidemic,” with a similar forecast of tripling by 2050: 47.5 million cases vs. an estimated 135.5 million, worldwide.

Whose job is it to intervene?

The merging trend lines of longer lifespans and cognitive impairment are an increasing cause of concern among bars and state regulatory agencies that handle competency complaints aimed at older attorneys. But the issue of spotting—and, more importantly—reporting a potential cognitive impairment problem remains a sensitive subject.

“Denial is a big issue,” says Michael Cohen, executive director of Florida Lawyers Assistance. “Quite often, you don’t know you’re ‘there’ [if you have a cognitive impairment]. The affected attorney is usually the last one to know.”

That can often create embarrassing situations in courtrooms, he says, leading to potential formal complaints.

“[Louisiana] is clearly seeing an increase in the number of investigations for issues related toage-related dementia,” says Dane Ciolino, former chair of the Louisiana Attorney Disciplinary Board and a veteran attorney and consultant in lawyer and judicial discipline. “People were more willing to retire years ago than they are now.”

But before many of those complaints reach disciplinary boards, they are often directed—both formally and informally—to lawyers’ assistance programs.

“People don’t want to call the state bar disciplinary committee on the dean of the local bar, so they call us,” says Nan Hannah, the founding chair of the North Carolina Bar Association’s Transitioning Lawyers Commission. “It’s a hard call to make. If you’re a paralegal for a solo practitioner and if you make that call, you’re probably killing your job.”

Terry Harrell, executive director of the Indiana Judges and Lawyers Assistance Program and chair of the ABA Commission on Lawyer Assistance Programs, agrees that family, friends and colleagues of potentially cognitively impaired lawyers are reluctant to report such issues. But she believes more attorneys understand that not reporting an issue risks damage to clients and the profession, potentially violating an oath that most lawyers have taken.

“We are getting more calls,” she says. “As people learn more about us, dementia is being viewed more as a mental health concern. We’re the softer approach than discipline.”

But not all cognitive impairment concerns brought to LAPs are just that. Brain tumors, hearing loss, mild strokes, and urinary tract infections are just some of the often-correctable medical issues that have been erroneously viewed as more typical, age-related cognitive impairment, Harrell and others say.

Still, LAPs remain among the first to get calls about cognitively impaired attorneys, Harrell and others says, with many saying they’re seeing a small but steady increase in reports.

“There’s not another place for these calls to go,” Buchanan says. “It’s fallen into that ‘to-do list’ [for LAPs], so we’ve had to become knowledgeable about this issue.”

And to a great extent, more LAPs and bar associations are responding.

Formed in 2012, North Carolina’s Transitioning Lawyers Commission is recognized by the mandatory North Carolina State Bar as a certified LAP. The TLC trains volunteer NCBA members who help identify potentially cognitively impaired attorneys, working confidentially to transition them out of everyday legal practice. The process usually involves family members, colleagues and a professional neuropsychologist, who work together on the diagnosis and future plan, Hannah says. The program was recently granted a five-year extension as a LAP, and received a 2015 NABE LexisNexis Community and Educational Outreach Award.

“It was created as an intervention program, but we don’t use the word ‘intervention,’” Hannah notes. “If people think you’re an intervention group, they don’t want to be a part of it. We wanted it to be a ‘warm blanket’ intervention.”

And while LAPs have done an admirable job in helping cognitively impaired attorneys, Cohen says, the issue is still challenging for many counselors.

“It’s the most difficult type of intervention we do,” he notes. “It’s much more difficult than substance abuse, where we have a rehabilitation plan. There is none here. It’s basically, ‘It’s going to end with you turning in your [law] license.’”

The state bar's New Mexico Judges and Lawyers Assistance Program uses the committee's resources as a cornerstone of its educational initiative. In seminars throughout the state, "We show the first part of the video, walk participants through the succession planning handbook and discuss how to intervene and refer appropriately,” says Jill Anne Yeagley, program administrator and clinician for NMJLAP. “We have a large number of solo practitioners, and our goal is for all of them to have well-developed transition and succession plans in place to prevent serious harm to their clients and their families.”

Mote says that LAPs, the organized bar and the courts need to intensify their education efforts to make sure that attorneys develop succession and retirement plans—well before they need them.

“We don’t want this wonderful 45- to 50-year career to be on the front page of the newspapers because of legal malpractice,” he says.